DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 3, 5-8, & 12-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 3, 5-8, & 12-14, the term “preferably” renders the claim indefinite because it is unclear whether the limitation(s) following the term are part of the claimed invention. See MPEP § 2173.05(d).
Claims 6-7 are indefinite due to dependence upon an indefinite base claim.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-14 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over the claims of copending Application No. 19/072109. Although the conflicting claims are not identical, they are not patentably distinct from each other because both the copending and instant applications teach an electric motor, an actuator, a gearing, first & second housings, and a lever arrangement. Thus, the invention of the claims in the copending application is in effect a species of the generic invention of claims 1-14. It has been held that the generic invention is anticipated by the species, see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed Cir. 1993). Since claims 1-14 are anticipated (fully encompassed) by the claims of the copending application, they are not patentably distinct there from, regardless of any additional subject matter present in the claims of the copending application. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Claims 1-14 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over the claims of copending Application No. 19/070956. Although the conflicting claims are not identical, they are not patentably distinct from each other because both the copending and instant applications teach an electric motor, an actuator, a gearing, first & second housings, and a lever arrangement. Thus, the invention of the claims in the copending application is in effect a species of the generic invention of claims 1-14. It has been held that the generic invention is anticipated by the species, see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed Cir. 1993). Since claims 1-14 are anticipated (fully encompassed) by the claims of the copending application, they are not patentably distinct there from, regardless of any additional subject matter present in the claims of the copending application. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Claims 1-14 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over the claims of copending Application No. 19/071002. Although the conflicting claims are not identical, they are not patentably distinct from each other because both the copending and instant applications teach an electric motor, an actuator, a gearing, first & second housings, and a lever arrangement. Thus, the invention of the claims in the copending application is in effect a species of the generic invention of claims 1-14. It has been held that the generic invention is anticipated by the species, see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed Cir. 1993). Since claims 1-14 are anticipated (fully encompassed) by the claims of the copending application, they are not patentably distinct there from, regardless of any additional subject matter present in the claims of the copending application. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Claims 1-14 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over the claims of copending Application No. 19/069772. Although the conflicting claims are not identical, they are not patentably distinct from each other because both the copending and instant applications teach an electric motor, an actuator, a gearing, first & second housings, and a lever arrangement. Thus, the invention of the claims in the copending application is in effect a species of the generic invention of claims 1-14. It has been held that the generic invention is anticipated by the species, see In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed Cir. 1993). Since claims 1-14 are anticipated (fully encompassed) by the claims of the copending application, they are not patentably distinct there from, regardless of any additional subject matter present in the claims of the copending application. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-7 & 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by DE202007006689.
Regarding claim 1, DE202007006689 teaches a furniture drive for driving a movable furniture part in the form of a flap to be opened in an upward direction, the furniture drive comprising: at least one electric motor (38), at least one actuator (4) movable between two end positions (Figs. 1 & 3) for applying a force to the furniture part to be driven, a gearing (32) interposed between the electric motor and the actuator, wherein the at least one electric motor and the at least one actuator are arranged above each other substantially in a common plane (Figs. 3-4), wherein the electric motor and the gearing are arranged in a first housing (50) and the actuator is arranged in a second housing (2), the second housing being constructively separated from the first housing (Figs. 2-4), wherein a lever arrangement (7, 21-22, 30) is provided by which the actuator is pivotally connected to the housing, wherein the actuator, in at least one of the two end positions, and the electric motor are configured to be substantially entirely integrated into a common furniture panel of the furniture carcass (Figs. 1-4 – note that the actuator (4) and electric motor (38) shown in these figures is clearly capable of substantially complete integration into an appropriately-sized and -shaped common furniture panel of a furniture carcass).
Regarding claim 2, DE202007006689 teaches two housings (2, 50) arranged substantially in a common plane (Fig. 4) above each other (i.e., if the structure in Figs. 1-3 was rotated 90 degrees clockwise, for use in an upwardly-opening door) in a coupled condition (note that 2 & 50 are coupled to each other at least via 7, 30, & 33).
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Regarding claim 3, DE202007006689 teaches a first housing (50) that includes two housing walls (A & B in Fig. 4 Annotated) partially spaced apart from each other (Fig. 4).
Regarding claim 4, DE202007006689 teaches an electric motor (38), in a position of use of the furniture drive, that is arranged below (Fig. 3) the actuator (4).
Regarding claim 5, DE202007006689 teaches at least one transmission device (31, 33) that is provided, the gearing (32) being connected or being configured to be connected to the actuator (4) by the transmission device (Fig. 2 & par. 24), preferably wherein the transmission device includes at least one lever (33) and/or at least one tooth arrangement (31).
Regarding claim 6, DE202007006689 teaches at least one lever (33) of the transmission device (31, 33) that is at least partially arranged within and/or at least partially arranged outside a housing (50) of the furniture drive (Figs. 1-4).
Regarding claim 7, DE202007006689 teaches at least one tooth arrangement (31) of the transmission device (31, 33) that is connected to the gearing (32) in a movement-coupled manner (Fig. 2 & par. 24).
Regarding claim 11, DE202007006689 teaches at least one mechanical force storage member (25), and a force for compensating for a weight force of the furniture part to be driven can be applied to the actuator (4) by the force storage member (par. 22).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over DE202007006689. DE202007006689 teaches the structure substantially as claimed, including at least one housing (50) having an unspecified maximum width. Additionally, altering the size of a component has been held to involve only routine skill in the art (MPEP 2144.04). It would have been an obvious design consideration to one of ordinary skill in the art to modify the housing of DE202007006689, with a reasonable expectation of success, by making said the maximum width of said housing 15 mm, depending on the desired needs of the person constructing the housing (e.g., intended use of the housing, aesthetic considerations, compactness, ease of manufacture, etc.).
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over DE202007006689 in view of Vom Brocke (DE102020125120).
Regarding claim 9, DE202007006689 teaches the structure substantially as claimed, including an electric motor; but fail(s) to teach an external rotor motor or a disc motor. However, Vom Brocke teaches drive means comprising an electric motor (6) configured as an external rotor motor or as a disc motor (6). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to substitute drive means, as taught by Vom Brocke, for the electric motor of DE202007006689, with a reasonable expectation of success, in order to reduce user effort required to move the furniture part, and and because such an outcome would have been a predictable result of such a substitution of one known drive means for another.
Regarding claim 10, DE202007006689 as modified teaches at least one drive belt (par. 62 of Vom Brocke) provided for transmitting a force from the electric motor (6 of Vom Brocke) to the gearing (32 of DE202007006689).
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over DE202007006689 in view of Krudener (EP3401479).
Regarding claim 12, DE202007006689 teaches the structure substantially as claimed, including an actuator (4); but fail(s) to teach a cover. However, Krudener teaches at least one cover (21), wherein at least one actuator (14), in at least one relative position, can be guided through the at least one cover (Fig. 3), preferably wherein the at least one cover: includes at least one laterally projecting flange (21), and/or at least partially covers a peripheral region of a furniture panel (i.e., edge of recess (31) in which a housing (12) of a furniture drive is located), the peripheral region surrounding the furniture drive in a mounted condition of the furniture drive (Figs. 1-2). It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to add a cover, as taught by Krudener, to the furniture drive of DE202007006689, with a reasonable expectation of success, in order to improve the provide a cleaner, more finished appearance to any piece of furniture in which the furniture drive is mounted.
Regarding claim 13, Krudener further teaches an item of furniture (3-8), preferably upper cabinet, comprising: at least one furniture carcass formed of furniture panels (4-8), and at least one movable furniture part (3) in the form of a flap to be opened in an upward direction. It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to add an item of furniture, as taught by Krudener, to the structure of DE202007006689, with a reasonable expectation of success, in order to provide additional storage capacity. Hence, DE202007006689 as modified would teach an item of furniture (3-8 of Krudener) comprising a furniture drive (Fig. 1 of DE202007006689), wherein the furniture part (3 of Krudener) is movably-supported on the item of furniture via the at least one furniture drive (as in par. 19 of DE202007006689), the furniture drive including at least one electric motor (38 of DE202007006689), at least one actuator (4 of DE202007006689) movable between two end positions (Figs. 1 & 3 of DE202007006689) for applying a force to the furniture part to be driven, and a gearing (32 of DE202007006689) interposed between the electric motor and the actuator, wherein the actuator, at least in one of the two end positions, and the electric motor are substantially entirely integrated into a common furniture panel of the furniture carcass (as in Figs. 1-2 & par. 45-46 of Krudener).
Regarding claim 14, DE202007006689 as modified teaches a housing (2, 50 of DE202007006689) of the at least one furniture drive (Fig. 1 of DE202007006689) that is substantially entirely inserted into a recess (31 of Krudener) of the furniture panel (4-5 of Krudener), preferably wherein at least one cover (20, 21 of Krudener) at least partially covers a peripheral region of the recess (as in Figs. 1-2 & par. 45-46 of Krudener).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW ING whose telephone number is (571)272-6536. The examiner can normally be reached M-F 8:30 a.m. - 5 p.m.. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Daniel Troy can be reached at (571) 270-3742. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
/MATTHEW W ING/Primary Examiner, Art Unit 3637
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